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Friday, December 8, 2023 | Back issues
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No Due Process Error in Problematic Witness ID

(CN) - The Supreme Court on Wednesday refused to find a due-process violation in the suggestive witness identification of a black man suspected of breaking into cars.

Joffre Ulon called the police in Nashua, N.H., at 3 a.m. one summer night in 2008 to report that a black man was breaking into cars in the parking lot outside his building. Ulon's wife, Nubia Blandon, awoke her neighbor, Alex Clavijo, with the news that she had watched the prowler entering Clavijo's car.

When Officer Nicole Clay entered the parking lot, she found Barion Perry standing between two cars, holding two car-stereo amplifiers. Clay had also heard the clang of a metal bat hitting the pavement and observed that there was such a bat behind Perry.

Clavijo entered the lot to check on his car and left with Officer Clay to talk to Blandon. Perry remained in the parking lot with another officer.

When Clay asked Blandon for a more specific description of the man she claimed to have witnessed, Blandon pointed out her fourth-floor window at Perry.

Perry was arrested, but Blandon could not pick his photo out of a lineup a month later. At trial, the New Hampshire Superior Court refused to toss Blandon's ID. A jury found Perry guilty of theft and not guilty of the other crime with which he was charged, criminal mischief.

The New Hampshire Supreme Court also refused to toss the identification, leading the U.S. Supreme Court to take up the case.

In affirming the lower courts on Wednesday, the justices noted that "an identification infected by improper police influence, our case law holds, is not automatically excluded."

"Most eyewitness identifications involve some element of suggestion," Justice Ruth Bader Ginsburg wrote for the majority. "In­deed, all in-court identifications do. Out-of-court identifi­cations volunteered by witnesses are also likely to involve suggestive circumstances."

"The fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness," she added. "Our unwillingness to enlarge the domain of due process as Perry and the dissent urge rests, in large part, on our recognition that the jury, not the judge, traditionally determines the reliability of evidence."

The justices noted that criminal trials offer several safeguards for defendants and that Perry's attorney warned the jury in opening statements about the vulnerability of Blandon's ID.

Justice Clarence Thomas wrote a separate concurring opinion that cautioned against reliance on a series of decisions, beginning with Stovall v. Denno in 1967, that involved police-­arranged identification procedures.

"In my view, those cases are wrongly de­cided because the Fourteenth Amendment's due process clause is not a 'secret repository of substantive guaran­tees against "unfairness,"'" Thomas wrote, citing a dissent he joined with Justice Antontin Scalia in 1996.

In a 17-page dissent, Justice Sonia Sotomayor slammed the majority for "creat[ing] a novel and significant limi­tation on our longstanding rule: Eyewitness identifications so impermissibly suggestive that they pose a very sub­stantial likelihood of an unreliable identification will be deemed inadmissible at trial only if the suggestive circum­stances were 'police-arranged.'"

"As the court acknowledges, Perry alleges an 'accidental showup,'" she added. "He was the only African-American at the scene of the crime standing next to a police officer. For the majority, the fact that the police did not intend that showup, even if they inadvertently caused it in the course of a police procedure, ends the inquiry. The police were questioning the eyewitness, Blandon, about the perpetra­tor's identity, and were intentionally detaining Perry in the parking lot - but had not intended for Blandon to identify the perpetrator from her window. Presumably, in the majority's view, had the police asked Blandon to move to the window to identify the perpetrator, that could have made all the difference."

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